Citation Nr: 0713201 Decision Date: 05/03/07 Archive Date: 05/15/07 DOCKET NO. 03-02 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for chronic inflammation of the nasal cavities, including the sinuses. ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran had active military service from June 1986 to September 1986 and from September 1990 to May 1991, including service in Southwest Asia from October 1990 to May 1991 in support of Operation Desert Shield/Storm. This matter comes before the Board of Veterans' Appeals (Board) from a June 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO denied service connection for sinusitis. The claim was remanded in January 2004 and May 2006 for additional development. In January 2007, the RO issued a Supplemental Statement of the Case denying service connection for chronic inflammation of the nasal cavities. The record reflects an August 2001 claim for service connection for a painful scar related to the veteran's service-connected fracture left distal fibula and posterior malleolus, postoperative with degenerative changes. The proper steps to address the veteran's claim have not been taken. Therefore, the Board refers this issue to the RO for appropriate action. See Roberson v. Principi, 251 F.3d 1378, 1384 (2001). FINDING OF FACT Allergic rhinitis, claimed as chronic inflammation of the nasal cavities, including the sinuses, is not related to service. CONCLUSION OF LAW Allergic rhinitis was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. § 3.303(2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the veteran's claims folder, which includes, but is not limited to: service medical records, VA treatment records, private medical records, lay statements, and December 2000, August 2002, and January 2005 compensation and pension examinations and medical opinion statements. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on her behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In order to establish service connection, three elements must be satisfied. There must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303 (2006); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Factual Background The veteran contends that her current chronic inflammation of the nasal cavities, including the sinuses, is related to exposure to "toxic smoke" caused by oil fires during service in Operation Desert Storm. Her symptoms first manifested six months after separation from service. Service medical records reflect no complaints of or treatment for a nasal or sinus condition. The veteran underwent a medical examination in December 2000 from Dr. J. A. She reported ongoing symptoms of sinusitis and intermittent laryngitis for the previous five years. She complained of pain, facial pressure, and nasal congestion. On examination, nasal obstruction secondary to turbinate hypertrophy was observed. Bilateral perinasal tenderness on palpation without active nasal drainage was noted. Sinus x- rays revealed thickening of the lining of the left maxillary sinus, especially at the inferior and lateral aspects. A diagnosis of chronic inflammation of the sinuses of unclear etiology was reached. The veteran underwent an examination and allergy consultation performed by Dr. A. H. in January 2005. She reported no history of chronic rhinosinusitis symptoms until she returned from Saudi Arabia in 1991. She reported chronic nasal congestion, maxillary sinus and gum pain, chronic post-nasal drainage with frequent throat clearing, sneezing, optic pruritis, and a minimal secondary cough. She also reported frontal and occipital headaches associated with her symptoms. On examination, pallor of the nasal mucosal membranes with clear discharge was present, as well as marked edema of the inferior turbinates with approximately eighty percent obstruction. Examination of the posterior pharynx was significant for erythema and cobblestone edema, without exudates or visible post-nasal drainage. Perennial allergic rhinitis and possible chronic sinusitis were diagnosed. A subsequent CT scan ruled out a diagnosis of chronic sinusitis, as the images of the veteran's sinuses were normal. In February 2005, Dr. A. H. clarified the language used to state the nexus opinion. Dr. A. H. noted that there is no objective testing available to prove whether the veteran's current disability was caused by exposure to burning oil in service. Dr. A. H. concluded that since the veteran's clinical history is negative for rhinosinusitis symptoms until she returned from the gulf, it is less likely as not that her exposure to the burning oil aggravated or caused her rhinosinusitis symptoms. Also of record is a January 2005 VA medical opinion addendum. The VA examiner noted that Dr. A. H.'s examination was performed without review of the veteran's claims folder. The VA examiner reviewed the veteran's claims folder and noted that no symptoms were documented during service. The examiner concluded that the veteran's chronic inflammation of the sinuses was not related to service, as it would be conjecture to find a medical nexus where no symptoms were noted in service medical records. Analysis In light of the evidence of record, it is clear that the veteran currently suffers from a chronic disability affecting her nasal passages and sinuses, manifested by pain and nasal congestion. The medical evidence of record reflects a current diagnosis of allergic rhinitis. Since this is a diagnosed disability, the presumption of service connection for certain undiagnosed illnesses in Gulf War veterans does not apply. See 38 C.F.R. § 3.317 (2006). However, despite diagnosis of a current disability, the most probative evidence of record indicates that the veteran's allergic rhinitis disability was not incurred in service. The veteran underwent medical examinations in December 2000 and January 2005 and several addendums to the aforementioned examinations have been associated with the claims folder. After review of the veteran's service medical records, private and VA treatment records, lay statements, and the earlier opinion statements; a VA examiner noted that the veteran did not complain of or seek treatment for allergic rhinitis symptoms during service. The examiner concluded that the veteran's disability is not related to service. Also of record are lay statements from the veteran, as well as her friends and co-workers. The veteran contends that since she did not complain of or seek treatment for sinusitis or allergic rhinitis before separation from active service, her current condition was incurred in service. Similarly, her supporting witnesses note that they did not observe complaints of nasal, sinus, or allergy symptoms before the veteran's separation from active service. To the extent that the veteran and her lay witnesses ascribe her current disability to service, the aforementioned opinions are not probative of a medical nexus, because the aforementioned individuals lack the medical expertise necessary to opine on matters requiring knowledge of medical principles or causation. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board notes that the December 2000 and January 2005 examinations were performed without access to the veteran's claims folder. Further, both examinations resulted in ambiguous nexus opinions. In January 2005 a VA examiner reviewed the veteran's claims folder and concluded no medical nexus exists between the veteran's current disability and service. This matter was remanded in May 2006 for another VA examination and nexus opinion. In November 2006 the veteran cancelled her scheduled compensation and pension examination and requested that the Board decide the claim on the evidence of record. The most probative opinion of record is the January 2005 VA medical opinion statement. There is no evidence that the veteran suffered from allergic rhinitis or a sinus condition during service. Further, during her December 2000 examination, the veteran reported not seeking treatment for her symptoms until 1995, several years after separation from service in 1991. In addition, the most probative medical opinion of record is against a grant of service connection, as the medical evidence indicates the veteran did not complain of or seek treatment for a nasal or sinus condition during service. The criteria for a grant of service connection have not been met. The preponderance of evidence is against the claim, the "benefit of the doubt rule" does not apply, and the claim for service connection for allergic rhinitis, claimed as chronic inflammation of the nasal cavities, including the sinuses, must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). Duty to Notify and Assist Duty to Notify: Regarding VA's duty to inform the veteran of the evidence needed to substantiate her claim, the RO notified her of the information and evidence needed to establish entitlement to service-connection in correspondence dated March 2001 by informing her of the evidence she was required to submit, including any evidence in her possession, and the evidence that the RO would obtain on her behalf. Notice regarding disability ratings and effective dates of disability benefits was provided to the veteran in May 2006. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist: Regarding the duty to assist the veteran in obtaining evidence in support of her claim, the RO obtained her service medical records, VA medical records, and medical examinations performed in December 2000 and January 2005. Also of record is a January 2005 VA medical opinion. In November 2006 the veteran cancelled her VA examination and requested that the Board decide the claim on the evidence of record. The veteran has not indicated the existence of any other evidence that is relevant to this appeal. The Board concludes that all relevant data has been obtained for determining the merits of this claim and that no reasonable possibility exists that any further assistance would aid her in substantiating this claim. ORDER Entitlement to service connection for chronic inflammation of the nasal cavities, including the sinuses is denied. ____________________________________________ J. E. DAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs